Zanello (19238/2018), Ex parte [2019] ZAWCHC 85 (10 July 2019)

Zanello (19238/2018), Ex parte [2019] ZAWCHC 85 (10 July 2019)

The court found that Mr Theron was never properly appointed as curator bonis, as he was unaware of the court order and did not apply for letters of curatorship. There was no misconduct or remuneration earned by Mr Theron. While Mr Theron could have taken further steps to identify his appointment, the failure to do so did not justify a costs order against him beyond his tender. The applicant and curator ad litem should not have persisted in seeking costs above the amount tendered once Mr Theron's explanation was provided. The balance of costs should be borne by the patient’s estate, as the applicant acted in good faith and in the best interests of the patient.

Citation
[2019] ZAWCHC 85
Parties
Applicant: Sandy Dennis Robert Valentino Zanello; Respondent: Rosina Zanello; Respondent: Pieter François Theron
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
10 July 2019
Case Number
19238/2018
Procedural Posture
Ex Parte Application / Substitution of Curator Bonis; Costs Determination
Outcome
Mr Theron is ordered to pay R7500 towards the costs of substitution; all other costs to be borne by the patient’s estate.
Judges
Rogers
Legal Topics
Curatorship, Costs Award, Administration of Estates Act, Substitution of Curator
Civil Procedure Family and Children Curatorship Costs Award Administration of Estates Act Substitution of Curator

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Parties

Sandy Dennis Robert Valentino Zanello

Applicant

Rosina Zanello

Respondent

Pieter François Theron

Respondent

Procedural Posture

Ex Parte Application / Substitution of Curator Bonis; Costs Determination

Legal Issues

  1. 1 Whether the outgoing curator bonis, Mr Theron, should bear the costs of the substitution application.
  2. 2 Whether Mr Theron was ever properly appointed as curator bonis for the patient.
  3. 3 Whether the costs should be borne by the patient’s estate or personally by Mr Theron.

Ratio Decidendi

The court found that Mr Theron was never properly appointed as curator bonis, as he was unaware of the court order and did not apply for letters of curatorship. There was no misconduct or remuneration earned by Mr Theron. While Mr Theron could have taken further steps to identify his appointment, the failure to do so did not justify a costs order against him beyond his tender. The applicant and curator ad litem should not have persisted in seeking costs above the amount tendered once Mr Theron's explanation was provided. The balance of costs should be borne by the patient’s estate, as the applicant acted in good faith and in the best interests of the patient.

Court Disposition

Mr Theron is ordered to pay R7500 towards the costs of substitution; all other costs to be borne by the patient’s estate.

Orders

  • Mr Pieter François Theron shall, within one week from the date of this order, pay to the applicant’s attorneys an amount of R7500 in respect of the costs of substituting Mr Johan Swart as curator bonis.
  • Save as aforesaid, the costs occasioned by such substitution, including the appearances on 26 and 28 June 2019, shall be borne by the patient’s estate.